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THE CONFISCATION LAWS 
OF MASSACHUSETTS 



BY 



ANDREW McFARLAND DAVIS 




UK'S ^ '^^ : 

PRESENTi:n BY 



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THE CONFISCATION LAWS 
OF MASSACHUSETTS " 



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BY 

ANDREW McFARLAND DAVIS 



REPRINTED FROM 

THE PUBLICATIONS 

OF 

Clje Colonial ^ocict^ of itlt^ags^acljusfettsf 

(Transactions, January, 1903) 
Vol. VIII 



CAMBRIDGE 

JOHN WILSON AND SON 

©nihtrsitg ?|res8 

1906 



One hundred copies privately printed. 

The substance of this paper is embodied in a chapter 
171 " The Confiscatio7i of John Chandler's Estate." 



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THE CONFISCATION LAWS 
OF MASSACHUSETTS 



THE CONFISCATION LAWS OF MASSACHUSETTS. 

An examination of the several resolves passed by the Committee 
of Safety and the Provincial Congress in Massachusetts, and later 
the resolves and statutes passed by the Assembly of the Colony, 
will j'eveal the fact that there was some authority to be derived 
therefrom for nearly every outrage committed upon the property 
of the LoyaHsts in the name of the Committees of the several 
towns.^ No such legislation exists, however, under cover of which 
assaults upon the person could be justified. The great dramatist 

. 1 The legislation considered in this paper is that which applied to refugees 
like John Chandler and to their property. The following Acts which reached 
the cases of Loyalists who remained in Massachusetts, are not discussed. 
Perhaps reference to them is necessary to round out the subject: — 

The Act for disarming persons notoriously disaffected to the cause of America, passed 
1 May, 1776 (Province Laws, v. 479) ; 

The Act for taking up and restraining persons dangerous to this Slate, passed 9 May, 
1777 {Ibid. V. 641) ; 

The Act for securing this and the other United States against the danger to which 
they are exposed by the internal enemies thereof, passed 10 May, 1777 {Ibid. v. 648) ; 

The Act for prescribing and establisliing an oath of fidelity and allegiance, passed 
3 February, 1778 [Ibid. v. 770) ; 

together with the several amendments, additions, and explanations of these acts subse- 
quently passed. 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 51 

represents the brawlers in the streets of Verona, even while carry- 
ing out the traditions of the houses to which they belonged, as 
discussing whether they had the law on their side before they 
would take their chances of injuring their opponents in a street 
fight. Not so the Patriots. However scrupulous they might be 
in seeking the protection of the law before invading property 
rights, they did not hesitate to maltreat offending Tories in a law- 
less and scandalous manner. Acts of this sort that were perpe- 
trated in the name of Committees were subsequently brought 
under the a3gis of the law. Any member of any of the Committees 
of Correspondence, etc., who at any time prior to the Declaration 
of Independence made any mistake in the seizure of property or 
in apprehending or confining any person was, by a law passed for 
that purpose, screened from suits for damage.^ 

The resolves and the statutes of this period also tell the story of 
the progressive change of feeling towards the Loyalists which 
accompanied the growth of belief that the colonies might prevail 
and that a separate government might be the result of the contest 
then going on. Even before the first collision at arms, many loyal 
citizens sought protection in Boston from the abuse of their former 
friends and neighbors. So long as there was no form of govern- 
ment, except that under the Charter, there was no such thing as 
an abandonment of property involved in taking such a step as this, 
but after the organization of the Provincial Congress, Massachu- 
setts was for a time practically under two governments, the one 
having control in Boston, the other covering the rest of the 
Province. When, therefore, after the battle of Lexington, citizens 
of the towns near Boston fled to that place, their flight, in some 
cases at least, was accompanied by an abandonment of property. 
In some instances, relatives were left in charge of the homes thus 
deserted, but there were many prominent men who felt that 
personal safety was the first consideration, and who, being entirely 
unprepared for the unexpected situation, were compelled to leave 
their homes without having had a chance to install representatives. 
Property thus abandoned was exposed to pillage. Its protection 

1 An Act to indemnify, and to secure from prosecution in law, persons who 
by their laudable exertions under the late government of the king of Great 
Britain, have exposed themselves to actions of damage, and other prosecutions, 
in certain cases, passed 10 April, 1780 (Pj-ovince Laws, v. 1169). 



52 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

was the first thought of the authorities. Sequestration could not 
at that tmie have entered the mind of anybody as a possible solu- 
tion for the question of its future disposition. It may be assumed, 
therefore, that the sole motive which governed the first legislation 
touching property in this condition was the protection of the com- 
munity from the excesses of evil-doers. The exposed property 
was a temptation. There was a measure of responsibility on the 
part of the Patriots for this exposure. It could be atoned for in 
part by assuming control of the property for the benefit of whom 
it might concern. This was evidently the spirit in which the 
Committee of Safety, 3 May, 1775, instructed the quarter-master- 
general to pay the strictest attention that the household furniture 
of those persons who had taken refuge in the town of Boston 
might be properly secured and disposed of in places of safety.^ 

The masterful tone and the revengeful spirit of the Confiscation 
Act are entirely wanting here, and yet the next step taken, even 
though it was more than a year before the Declaration of Indepen- 
dence, is characterized by an apparent confidence not altogether 
warranted by the military situation, a confidence which analysis 
shows to have been, after all, merely apparent. This time it was 
the Provincial Congress which spoke, and on the twent3''-second 
of May, forbade all persons in tliis " Colony " taking any 
deed, lease or conveyance of the lands, houses or estates of the 
refugees.^ The object of this was clear enough. Refugees, if 
permitted, would hasten to lodge their titles in the names of 
relatives or friends less objectionable to the Provincial Congress 
than themselves. It will be observed that the resolve does not 
undertake to prevent refugees from making such conveyances, 
but simj)ly forbids others to take them. In order to make such 

^ Province LaAvs, v. 706 ; and The Journals of each Provincial Congress of 
Massachusetts, in 1774 and 1775, and of the Committee of Safety, etc., p. 534. 

In the note to Chapter 38, Laws of 1776-77 (Province Lavv^s, v. 706-713), 
Mr. Goodell has collected not only the legislation on this point but also much 
material bearing upon it. In a similar way he has performed for us the same 
service in connection with Chapters 24, 48 and 49, Laws of 1778-79 in the 
same volume (pp. 1004-1009, 1052-1057, 1064), which deal with the same gen- 
eral subject at a later date. There is more of detail in these notes than can 
be produced here, but their examination will disclose how exhaustive they are 
and how little is left for the student of the subject to do. 

2 Province Laws, v. 706; Journals of the Provincial Congress, etc., p. 249. 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 53 

deeds effective, the grantee must have been some person who 
could have access to the property. This was only possible at 
that time for such as had given in their allegiance to the Pro- 
vincial Congress, hence the resolve in this form probably served 
its purpose. 

Events had advanced far enough to stir up the more radical of 
the Patriots to a desire for aggressive legislation but not far 
enough to relieve the apprehensions of the timid and the con- 
servative among the legislators. The first armed collision had 
taken place, but the lesson of confidence in the courage of the 
undisciplined volunteers then thronging on Cambridge Common, 
soon to be learned at Bunker Hill, had not been received. There 
was nothing wiiich should cause even the timid to hesitate in the 
passage of a resolve to which obedience was alone expected from 
those who had given in their fealty to the Provincial Congress. 
There was nothing in its wording which portended confiscation, 
yet this compulsory retention of titles in the names of the refugees 
must have had some such ulterior intention. 

Meanwhile, the Committee of Safety was in closer touch with 
current events bearing upon this property question than was the 
Provincial Congress. Complaints of the waste and destruction of 
the property of refugees poured in upon the committee in such 
numbers that on the twelfth of June 1775, they called the atten- 
tion of the Provincial Congress to the subject.^ How close was 
the touch and how trivial were some of the affairs with which the 
Congress and the Committee concerned themselves is shown by 
the recommendation to the Committee made by the Congress in 
consequence of that appeal. They were requested to have the 
grass cut on certain estates of refugees in Cambridge, Charlestown, 
Roxbury and Milton, and to secure it in some convenient place for 
the benefit of the colony.^ Two committees were appointed by 
the Congress, one to take care of estates of refugees and one to 
take into consideration the property of persons who had left their 
habitations in sundry towns in the Colony and who had " discov- 
ered " themselves to be enemies to the Colony and the continent.^ 

^ Province Laws, v. 706 ; Journals of the Provincial Congress, etc., p. 563. 
2 Province Laws, v. 707 ; Journals of the Provincial Congress, etc., p. 322. 
8 Province Laws, v. 707; Journals of the Provincial Congress, etc., p. 337, 
and Report of Committee, 17 June, p. 348. 



54 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

On the twenty-first of June, 1775, the Provincial Congress recom- 
mended the selectmen and the committees of correspondence of 
towns where any of the property of refugees was to be found, to 
take possession of such property and protect it from waste. They 
were to keep a record of the rents and profits which they should 
receive and they were to account to the Provincial Congress or the 
Assembly of the Colony for what they should collect, when thereto 
required.^ This important resolve lies at the base of all subsequent 
legislative action down to the passage of the Confiscation Act. 
The underlying principles are the same as those which were subse- 
quently elaborated into the act to prevent the waste, destruction 
and embezzlement of the property of refugees. All property of 
refugees was to be seized and the rents and profits therefrom were 
to be accounted for to the government. 

The use in this connection of the descriptive title The Assembly 
of the Colony calls attention to the legal theory under which 
the proceedings of the colonists had theretofore been conducted. 
There was of course no provision in the Charter under which such 
a body as the Provincial Congress could have been organized. Its 
members, although in revolt against the duly appointed repre- 
sentative of the Crown, had not as yet thrown off allegiance to 
Great Britain, nor was the situation such that they could with 
confidence expect that their proceedings would eventuate in such 
a result. They bore the same relation to the Crown as did their 
ancestors when they seized and imprisoned Andros, and the name 
Provincial Congress which they adopted was to a certain extent a 
misnomer, for the essence of a province was that it should have 
a Governor appointed by the Crown. The elective body which 
in the summer of 1775 was organized for legislative purposes 
through the instrumentality of this Congress was styled an As- 
sembly of the Colony, and as such its first act was to legahze 
the doings of the " Provincial Congress of the Colony." ^ 

The attitude taken in the resolve of the twenty-first of June 
would seem to have been too bold for some of the legislators, for, 
on the eighth of July, they secured the passage of an explanatory 
resolve, to the effect that the resolve of the twenty-first of June 

1 Province Laws, v. 707; Journals of the Provincial Congress, etc., pp. 368, 
369. 

2 Province Laws, v. 415. 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 55 

was only intended to apply to such estates as were "left unim- 
proved and void of any occupant or possessor." Other estates 
ouo-ht not to be so treated until the refugees should be " regularly 
indicted and tried for their supposed offences." ^ The operation of 
the resolve differed from that produced by the one passed on the 
third of May, as follows : Instead of being restricted to the house- 
hold furniture of those who had taken refuge in Boston, it applied 
to all abandoned property in the Province, and instead of the 
custody being turned over to the quarter-master-general, the prop- 
erty was intrusted to the care of the selectmen and committees 
of correspondence. The cause of these changes is obvious. To 
avoid insult and actual physical maltreatment, Loyalists from 
all parts of the Province had been compelled to take refuge in 
Boston. If, in so doing, they left behind them property without 
adequate provision for its care, it was plain that so narrow a 
description as " household furniture " might not cover all cases. 
The appointment in the original resolve of the quarter-master- 
general as custodian was evidently a mere temporary makeshift. 
The transfer of the keepership of the seized property to the select- 
men and committees of correspondence was a practical acknowl- 
edgment of responsibility and indicated a recognition of the 
probable necessity for a more protracted custody and an accept- 
ance of the self-imposed trust. 

Legislation with reference to abandoned property was permitted 
to rest in the condition laid down by the resolve of 21 June, 1775, 
as amended by tliat of the eighth of July of the same year, for 
about ten months. The subject was however discussed from 
time to time in the legislative body representing the people, 
whether congress or assembly, and the various propositions then 
introduced indicate that the representatives were becoming more 
and more aggressive. Thus, on the fifteenth of August, 1775, 
the House appointed a committee to examine the resolutions of 
the Continental Congress respecting refugees and report what was 
required to be done.^ Again, on the ninth of November, 1775, a 
resolve was passed in the same body empowering the selectmen 
and committees of correspondence, in towns where refugees had 

1 Province Laws, v. 707; Journals of the Provincial Congress, etc., p. 476. 

2 Province Laws, v. 707; House Journal, p. 73. 



66 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

left estates, both real and personal, to take care of the personal 
estate and to sell stock which could not be kept on account of the 
scarcity of fodder; to take care of the produce of the farms; to 
keep an account of their doings and report to the court when re- 
quired.^ The Council amended this resolve in three ways : They 
wanted to have the control of the selectmen and committees lim- 
ited to abandoned property ; they desired to have the report under 
oath; and they wished to preserve a loop-hole for refugees who 
might have some explanation to give of their conduct. This they 
proposed to accomplish by defining the purpose of the required 
report to be " that justice may hereafter be done to the public as 
also to those individuals, when due inquiry can be made into their 
conduct." 2 Apparently, these amendments were not acceptable to 
the House. The subject was again taken up by the Representa- 
tives on the fifth of January, 1776, and a committee appointed to 
brino- in a report.^ On the eighth a resolve was submitted to the 
House.* The hostility of the refugees was set forth in the pre- 
amble in strong terms. They had left behind them estates liable 
to waste and perish, and in some instances had arranged to receive 
rents from their real estate and the proceeds of sales of their 
personal property. The selectmen and committees of correspon- 
dence of any town where such abandoned estates were situated 
were to take possession of the same ; and to manage the real estate 
and dispose of the personal estate, in such manner that no part 
of the rents or proceeds would get in the hands of the refugees. 
Proper accounts were to be kept for the information of the General 
Court when required. This resolve, like its predecessor, met with 
amendment in the Council.^ The most important of the changes 
suggested seems to convey the idea that certain Patriots fleeing 
from Boston had arranged with Loyalists who had taken refuge 
in Boston for an exchange of property. The Council proposed 

1 Province Laws, v. 707; House Journal, p. 254; Massachusetts Archives, 
ccvii. 270. 

2 Province Laws, v. 708, where Mr. Goodell adds : — 

By the minutes upon the original resolve in the Archives as well as by the recorded 
doings of the Council and the House upon this resolve on the 18th and 27th, it does 
not appear to have been passed, notwithstanding an entry to that effect in the so called 
records of the General Court. 

8 House Journal, p. 119. * Ihid. pp. 127, 128. 

6 For this amendment, see House Journal, 11 January, 1776, p. 141. 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 57 

that after the clause requiring a report to the General Court, 
there should be added the words — 

" to whom they are to be accountable, provided always that nothing in 
the foregoing resolve shall extend to such estates real or personal as 
are now improved by persons late inhabitants of the town of Boston, 
who have given up their estates in said town to the owners of estates 
on which they now dwell." 

This amendment was not accepted by the Representatives, and at 
this stage the proposed legislation was apparently arrested. 

On the fourteenth of February, 1776, the subject was again con- 
sidered by the House. A resolve was reported which was duly 
passed and sent up for concurrence.^ This resolve was, in sub- 
stance, the same as that which had been passed by the House on 
the eighth of January, but to the clause requiring the selectmen 
and the committee to report their doings to the court when re- 
quired by that body, these words were added, "and unto whom 
they shall be accountable." Tliere was also a proviso added to 
the effect that the resolve was not to be construed to include 
estates which had been conveyed to persons friendly to the Colony 
prior to 22 May, 1775. There is no record of the action taken by 
the Council on this specific resolve, but it may be assumed that 
it failed of passage in that body. 

Meantime, the evacuation of Boston introduced a new set of 
problems urgent in their nature and requiring immediate atten- 
tion. The compulsory withdrawal of the English army and fleet, 
not only affected military affairs, but the prestige gained by the 
Americans in consequence of this important success reacted upon 
the political situation. It is not strange, therefore, to find imme- 
diately after this event, that thoughts of confiscation began to 
obtrude in the body from which all aggressive action had hereto- 
fore come. On the nineteenth of March, 1776, it was moved in 
the House that a list of the Boston Loyalists be made out, and an 
order was passed for the appointment of a committee to bring in a 
bill for the confiscation of the estates of persons who had aided the 
enemy .2 It would seem tliat the Council was not ready for this 
step, for on the twenty-fifth of March the General Court appointed 

1 Province Laws, v. 708, 709 ; House Journal, p. 293. 

2 Province Laws, v. 1052 ; House Journal, p. 18. 



58 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

a committee to repair to Boston and make an inventory of the real 
and personal property belonging to the mandamus councillors, 
commissioners of customs and others, ojDen and avowed enemies 
to the rights and liberties of America, who through fear of the 
American arms and the just resentment of their injured country- 
men had departed the town of Boston, and report the same to the 
court as soon as may be. Meantime, they were to cause such 
effects to be secured so as to prevent embezzlement.^ This com- 
mittee found unexpected obstacles in the way of securing posses- 
sion of the property of refugees and sought for and obtained, on 
the third of April, 1776, an extension of their powers.^ The re- 
solve under which this was granted, recites that the Court was 
informed that some of the estates of the refugees were then in 
the occupation and possession of persons who had clandestinely 
taken the same, and others were held under pretence of gift, sale 
or attachment. To secure possession of these estates the com- 
mittee was authorized to examine under oath persons suspected 
of having in their possession estates of refugees in the same man- 
ner as was permitted by tlie law governing estates of intestates. 
The committee was also authorized to take possession of property 
belonging to persons in Great Britain, the management of which 
was by power of attorney lodged in the hands of refugees. All of 
this without regard to legal proceedings instituted since the nine- 
teenth of April, 1775. 

On the sixth of April, 1776, justices of the peace were appointed 
to examine Loyalists whose names were on the list.^ On the eighth 
of the same month, the House recurred to the question of confisca- 
tion but was then held in check by the Council.* On the ninth, 
the House passed a resolve extending the provision as to inven- 
tories of property of Loyalists to all towns and requiring com- 
mittees of correspondence, safety and inspection, aided by the 
justices of the peace, to prepare lists of refugees.^ 

Having thus made provision for securing as far as possible the 

1 Province Laws, v. 709, 1064; House Journal, pp. 37, 40, 41. 

2 Province Laws, v. 709; House Journal, p. 75; Massachusetts Archives, 
ccviii. 328. 

3 House Journal, pp. 88, 89. •* Ihid. p. 96. 

^ Province Laws, v. 1052 ; ^lassachusetts Archives, ccviii. 357 ; House Jour- 
nal, p. 104. 



1903] THE CONFISCATION LAWS OF MASSACHUSETTS. 59 

property in Boston abandoned by the refugees who accompanied 
the British army to Hahfax, the House took up the resolve origi- 
nally introduced on the fourteenth of February, and on the nine- 
teenth of April, 1776, passed a resolve in which the Council 
concurred on the twenty-third.^ The preamble asserted that cer- 
tain enemies of the Colony and others who had left the Colony 
with intent to aid the enemy had left behind them real and per- 
sonal property subject to waste. The committees of correspon- 
dence, safety and inspection, in each town where there was 
property of this sort which the committees believed was the prop- 
erty of such refugees, were instructed to take possession of the 
property and to manage the estates according to their best judg- 
ment. They were to lease the real estate for one year; and to 
return an inventory of the personal property and a statement 
giving details as to leases. Estates occupied by persons friendly 
to the Colony under written conveyance dated prior to 22 May, 
1775, were exempted from the operation of this resolve. To this 
was added another clause intended to reach Loyalists who had 
not absconded, but had aided the enemy. The committees were 
ordered to return to the court a list of such Loyalists, including 
therein the names of those who had voted any address to General 
Gage approving his errand to the Colony or his acts as Governor 
since the dissolution of the General Court at Salem in 1774 ; or 
to Governor Hutchinson after the arrival of General Gage ; or to 
General Howe; or who had signed or promoted any association 
for joining or assisting the enemy ; and, finally, a list of the refu- 
gees who had left the Colony with the British army or fleet. 
Accompanying such lists, the committee were to forward evidence 
to prove that the names on the lists were properly there. There 
was a qualifying paragraph which probably means that the names 
of the Loyalists who had given satisfactory evidence of having 
abandoned the cause of the Crown and of having become true 
Patriots were not to be included in the lists. Justices of the 
peace were to aid in the preparation of the depositions. There 
is a degree of hesitancy in this resolve, which, under the circum- 
stances, seems singular. The evacuation of Boston was such a 
triumph for the American forces that the Patriots must thereafter 

1 Pro%'ince Laws, v. 710; House Journal, pp. 153, 154. 



60 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

have felt reasonably secure in taking whatever steps they chose. 
To a certain extent this feeling is shown in calling for lists of 
Loyahsts and refugees, but the power of control over the estates 
of refugees was limited in such a way as to indicate some ulterior 
purpose as to these estates. The leases of real estate which the 
committees were authorized to make were limited to one year and 
no authority whatever to dispose of personal estate was conferred 
in the resolve. It was soon realized that this resolve conflicted 
with the one of the twenty-fifth of March, appointing a committee 
to take charge of the abandoned estates in Boston. This situation 
was remedied by the passage on the second of May of a resolve 
continuing the powers of this committee until further order of tlie 
General Court, notwithstanding the resolve of the nineteenth of 
April. 1 

By this time it was realized that the fugitive Loyalists had left 
behind them families dependent for their support upon the prop- 
erty which had been seized and in this resolve recognition was 
had of the obligation which the government had assumed by taking 
possession of the property. This was accomplished by adding a 
proviso which gave authority to the committee to make allowance 
out of such estates, or the improvement thereof, for the support 
of the wives and children of the persons whose property was in 
the hands of the committee. The committee was also ordered to 
dispose of perishable property by auction. Through the above- 
mentioned action, provision was, to a certain extent, made for the 
support of the families of the Boston refugees, but no thought 
was had for those who were similarly situated elsewhere in the 
Colony. On the twenty-fifth of June, 1776, however, a committee 
was appointed by the House to inspect the returns of the com- 
mittees of correspondence with respect to the estates of refugees 
and to report if anything was required to be done in connection 
therewith.^ On the same day the House passed a resolve author- 
izing the committees of correspondence having estates of refugees 
in their possession, to allow for the support of the families so much 
of the improvement of the estates as, combined with the industry 

1 Province Laws, v. 710; Massachusetts Archives, ccix. 107. The resolve 
of 19 April, as it is generally cited, is the one that was concurred in by the 
Council April twenty-third. 

2 Province Laws, v. 711; House Journal, p. 127. 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 61 

of the families, would provide for their comfortable support.^ The 
selectmen of the towns, or the overseers of the poor, were by 
the terms of this resolve " empowered to bind out the children 
of such Tories in like manner as they are by law empowered to 
bind out the poor of their towns." The committees of correspon- 
dence were also authorized to sell perishable property belonging 
to said estates. It scarcely needs to be stated that the Council 
did not agree to the proposition to permit the compulsory appren- 
ticeship of all children of Tories, irrespective of their surround- 
ings and regardless of the question whether the seizure of the 
property of their parents would of necessity result in their be- 
coming public charges. 

Up to this point there had been no general authority conferred 
to sell property, and no appropriation by the Colony of the seized 
effects. Perishable property had been ordered to be sold, and from 
time to time specific instructions and special authority had been 
given in particular cases. 

The Assembly of the Colony was in session at the date of the 
Declaration of Independence, but was prorogued on the thirteenth 
of July, 1776, prior to the receipt of official information of the 
action of the Continental Congress. When the legislators met in 
August of that year, they represented one of the United States of 
America, and the revolt which had been in progress had become an 
open war against England. This permitted, indeed, it may be said 
to have compelled, the placing upon the statute books, in permanent 
form, a definite policy with regard to the estates of refugees, in 
place of the various conflicting resolves under which seizures had 
been made. The matter was taken up in October,^ but the act to 
prevent the waste of the estates of refugees, which was the result 
of these deliberations, was not finally passed until April, 1777. 
Meantime, the only change in the relations to the subject of those 
holding property of refugees under authority of the various re- 
solves, would seem to have been effected by a resolve passed 31 
January, 1777, ordering the committee for securing the estates of 
the absconding enemies to the rights of America to turn over to the 

^ Province Laws, v. 711; Court Eecords, xxxv- 77; printed Resolves, 
chap. cix. 

2 See supplementary note to chap. 38 of the Acts of 1776-77, Province 
Laws, V. 725. 



62 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

Board of War such eS^cts in their hands as mig^ht be available for 
this and the other United States.^ 

The "• Act to prevent the waste, destruction and embezzlement 
of the goods or estates of such persons who have left the same, and 
fled to our enemies for protection ; and also for the payment of their 
just debts, out of their estates " was passed in April.- This act 
authorized the judges of probate to appoint agents to take posses- 
sion of the property of persons who had voluntarily fled to the 
enemy leaving behind them estates amounting in value to twenty 
pounds or upwards. Judges of probate were authorized to allow 
the wife and family of the refugees, bedding and household furni- 
ture, and could also assign to the wife the use and improvement of 
one third of the real estate during the absence of the husband. 

The agent was to sell the personal property and pay the debts of 
the refugee. If there was not enough personal property to meet 
the debts, then recourse could be had to the real estate. Except 
for the purpose of paying debts, the agent had no power to sell 
real estate. Where the estates were not insolvent, the judge of 
probate could make allowance out of the rents and profits of the 
estate for the support of the absentee's family and servants. The 
agent was to pay over to the Treasurer of the State any balance in 
his hands after paying the debts of the estate and thereafter was to 
account to the judge of probate by whom he was appointed. Thus 
matters stood until the passage of the Confiscation Act. The flight 
of the refugee wa.s treated as being equivalent to his having com- 
mitted suicide. The agent appointed to take possession of his 
estate was given authority to manage the same "in as full and 
ample a manner as though the absent person was naturally dead and 
the said agent was appointed administrator of his or her estate." 
It was evidently the purpose of the act to give the agent control 
over the management of the real estate, but the extent of that 
control and its hmits are only to be inferred. The agent is put in 
possession and can receive the rents from leases made by commit- 
tees under authority of the court. He can make repairs. Out of 
the rents and profits in his hands he can pay such sums as the 
court allows for the support of the family. The committees having 

1 Province La^s, v. 711; printed Resolves, chap, cxxxi. ; Massachusetts 
Archives, ccxii. 213. 

2 Province Laws, v. 629 et sea. 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 63 

charge of real estate were only authorized to lease for one year. 
Perhaps it is a fair inference that the agents' power in this respect 
was similarly restricted. On the nineteenth of September, 1778, 
collectors of taxes were stayed from proceeding against the unim- 
proved estates of absentees.^ On the sixteenth of October, 1778, 
the power of judges of probate in the appointment of agents was 
extended. They were directed to exercise this power as soon as 
it should appear to them, by information or otherwise, that any 
persons had fled to the enemy for protection. The estates of refu- 
gees who since leaving home had died were not to be exempt, and 
commissioners were to be appointed to examine claims against all 
estates whether insolvent or not.^ The same act was further 
amended in February, 1779, by the addition of a clause which em- 
powered judges of probate to treat absentee executors and admin- 
istrators as if dead. Appointments could be made of persons to 
fulfil the trusts which the absentees were unable to perform." 

Pursuant to the recommendation of Congress, the subject of 
confiscation was taken up by the General Court in January, 1778. 
On the twenty-third of Februars*^ a Confiscation Act was reported 
and a list of names of refugees was ordered to be prepared. This 
was under consideration for a protracted period, the details con- 
cerning which are given in the note to Chapter 48 of the Acts of 
1778-79.^ The passage on the sixteenth of October, 1778, of the 
Act to prevent the return to this State of certain persons therein 
named and others who have left this State or either of the United 
States and joined the enemies thereof, would seem to have been the 
immediate outcome of this discussion.^ The State, at this time, 
had possession of practically all the property of the refugees. The 
personal property had, under authority, been disposed of. The 
real estate was still under the management of the agents who had 
been put in charge of it. Difiiculties of variotis sorts turned up, 
most of which were met by legislation, general in character, but 
calculated to meet the emergency which called it into being. The 
spring of 1779 was fertile with such legislation. On the nineteenth 
of February, 1779, agents who had not made returns of inventories 
were ordered to do so immediately. They were also required to 

^ Printed Resolves, September Session, 1778, Resolve xi. p. 33. 

2 Province Laws, v. 910, 911. * Ibid. v. 1053. « Ibid. y. 912. 

s Ibid. V. 931. 5 Ibid. v. 1052 et seq. 



64 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

make up their accounts with all possible expedition, and after de- 
ducting such allowance to the wife, widow, or family, as the judge 
of probate might have approved, to pay over the balance to the 
Treasurer of the State.^ The same day, another resolve was passed 
instructing agents to lease for circulating currency the real estate 
on one year leases.^ The property of subjects of Great Britain who 
had not resided in this State was, by resolves of date of 20 Febru- 
ary and 19 April, ordered to be turned over to the agents.^ A 
special resolve was passed 1 May, "providing for the ejectment of 
persons improperly holding possession of the property of refugees,* 
and resolves were passed 1 May and 3 May to meet the cases 
arising from delinquent agents.^ 

This review of special legislation of a general character at this 
period has carried us beyond the date of the passage of the two 
Confiscation Acts in which all of this legislation may be said to 
liave culminated. On the thirtieth of April, 1779, two bills were 
passed, the one directed against the estates of Mandamus Council- 
lors, Commissioners of Customs and certain other Royal office- 
holders, the other against the estates of refugees in general. In 
the former, the estates of the named persons were confiscated with- 
out further iiearing. In the general Confiscation Act there was 
detailed provision for the mode of trial under which the estates 
would be confiscated. Personal service, or the ordinary substi- 
tutes, lay at the base of the action and a jury was required even 
in case of default. In both acts provision was made for setting 
aside dower for the wife or widow of the refugee, out of the 
estate. 

In the proceedings under the Confiscation Act the result was 
simply that possession in behalf of the Commonwealth was 
given to an agent appointed for that purpose. No provision 
was made in the act by means of which the agent could pay 
debts. On the nineteenth of June, 1780, a committee was ap- 
pointed by resolve who were authorized to borrow money for the 
use of the State, and as security for the loans they could put 
lenders in possession of the real property of absentees.® On the 
twenty-ninth of November, 1780, a resolve was passed for selling 

1 Province Laws, v. 1000. » Ihid. v. 1000, 1001. 

2 Ibhi. V. 1000. ■* Ihid. V. 1002. & Ibid. v. 1002. 
6 Resolves of Massachusetts, 1780, Resolve Ixxxiii. 



1903.] THE CONFISCATION LAAVS OF MASSACHUSETTS. 65 

at public aucticn the estates and effects of absentees. The pro- 
ceeds were to be paid into the treasury.^ On the fourth of Decem- 
ber, 1780, the Confiscation Act was amended.^ The requirement 
of a jriy wliere there was no contest was dispensed with, and 
instead of the notification to the absentees set forth in the act as a 
basis for the proceedings in court, notice by publication in news- 
papers was substituted. The personal service required in the orig- 
inal act on absentees who were by law prohibited from enteriug 
Massachusetts was of course a legal farce and an absurd proposi- 
tion, nor was it much improved by having a notice left at the last 
and usual abode of the absentee, nor by posting it on the premises. 
Such absentees had, under the circumstances, no recognized interest 
in the proceedings and their families had no claim except through 
them. Only those were legally interested who might claim through 
some conveyance or contract which the courts would recognize as 
valid, and as these might not be known, publication was clearly the 
best way to reach them. Some of the confiscation suits were, at 
the time of the passage of this act, ripe for judgment. Taking 
advantage of the provision which dispensed with the jury require- 
ment, some of the courts at once proceeded to enter up judgment 
in the cases pending before them. It was soon discovered that 
the act which had made it possible to get along without a jury 
had also upset the service of the writs upon which these cases 
were based. To remedy this, a special act was passed 18 Januaiy, 
1781, legalizing the proceedings in these suits.^ 

The committees and agents were instructed, 2 February, 1781, 
not to lease property of absentees,* but on the third of March, 
following, they were authorized to lease for one year if they 
thought it was for the interest of the government.^ 

1 Laws and Resolves of Massachusetts, 1780-81, chap. 95, p. 183. 

2 Ibid. 1780-81. An act in addition to and for the alteration of some of 
the provisions of an act, etc., chap. 48, p. 113. I have used for my citations 
of subsequent legislation the reprints of the laws now in progress, the title 
given being the binder's title. This is sometimes misleading since the years 
which govern it are session years and the fall sessions overlapped the calendar 
year. 

8 Ibid. 1780-81, chap. 49, p. 114. 

^ Ibid. 1780-81, chap. 65, p. 254; Resolves of Massachusetts, 1781, Resolve 
Ixv. p. 79. 

5 Laws and Resolves of Massachusetts, 1780-81, chap. 196, p. 335 ; Resolves 
of Massachusetts, 1781, Resolve cxcvi. p. 129. 



66 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

The act to provide for the payment of the debts due from con- 
spirators, etc., was amended 1 May, 1781. Committees aj)pointed 
to sell the estates of absentees were authorized to sell at private 
sale to persons Avho had advanced money to the Commonwealth 
under the resolve of 19 June, 1780, the estates then turned over 
to them as security, provided the creditor of the Commonwealth 
made application for that purpose and was willing to take the 
estate at the appraised value designated by a committee appointed 
for that purpose.^ Tlie action taken in this last resolve is peculiar 
and not altogether consistent with what had just taken place, for 
on the second of March, the Legislature had formally passed an 
act to provide for the payment of debts due from conspirators and 
absentees and for the recovery of debts due to them in which 
they had appointed committees to sell the estates and pay the 
debts.2 The claims were to be examined by the committees for- 
merly appointed by the judges of probate. The sales were to be 
conducted as in the case of intestates. The committees for the 
several counties were named in the act and were authorized to 
sell the estates, pay the debts and pay over what was left to the 
Treasurer of the State. Money paid to the Treasurer could be 
reached by warrants issued on certificates of probate judges. 

On the fifteenth of May, knowledge having been acquired that 
there were persons in possession of real estate of absentees, who 
did not pay rent and others having personal property illegally 
in possession, a resolve was passed directing the committees ap- 
pointed to sell confiscated estates in the several counties, to make 
inquiries on these points and report thereon.^ The same day an 
act was passed directing commissioners to reject all claims orig- 
inating from conspirators or absentees and extending the time for 
proving claims against the estates and, in order to expedite pay- 
ments, authorizing payment in full to creditors who would give 
an indemnity bond to refund pro rata in case the proceeds of sales 
should be inadequate to meet all claims.* 

The committees of the several counties within the Common- 
wealth, appointed to dispose of confiscated estates, were, on the 

^ Laws and Resolves of Massachusetts, 1780-81, chap. 52, p. 122. 

2 Ibid. 1780-81, chap, 50, pp. 115 et seq. 

3 Ibid. 1780-81, chap. 176, p. 460. 

4 Ibid. 1780-81, chap. 53, pp. 123-125. 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 67 

eleventh of February, 1782, instructed to receive in payments the 
securities given to ofhcers and soldiers.^ On the seventli of 
Marcli, 1782, the committees for the sale of estates of absentees 
were authorized to lease tlie said estates for the ensuing year.^ 

On the eighth of March, 1782, in order that persons might be 
protected who had been prevented by good reasons from prose- 
cuting their claims against the estates of absentees, a resolve was 
passed, authorizing judges of probate to renew for three months 
the commissions of those previously appointed to examine claims. 
The commissioners thus re-appointed, or others in their places, 
were instructed to re-examine claims.'^ 

On the fifteenth day of June, 1782, an amendment to the act to 
provide for the payment of debts due from conspirators and absen- 
tees, etc., was passed, the purpose of which was to relieve the 
Commonwealth from the embarrassment caused by the exemption 
from the operation of the original act of estates put into the hands 
of persons who had advanced money under the resolve of 19 June, 
1780. Committees were authorized to sell to lessees at an appraised 
value, or to others at public or private sale, if the lessees refused 
to take the property on those terms. In cases where the proceeds 
of sales were inadequate to pay debts, committees were empowered 
to divide such proceeds among creditors pro rata, taking bonds 
for the repayment of the creditors' ratable proportion.^ If it be 
borne in mind that the agents had been called upon to remit to the 
State Treasurer, the character of the task of determining the sol- 
vency lof the estates thus imposed upon the committees will be 
better appreciated. 

Various resolves were passed in the summer of 1782, the 
purpose of which was to stimulate the settlement of estates of 
absentees. 

It would seem that the complicated state of affairs brought about 
by the great variety of legislation bearing upon the settlement of 
the estates of absentees brought with it the penalty of suits against 
agents and committees, in such numbers that the Legislature was 
obliged to come to their defence. This was done by the passage, 

^ Laws and Resolves of IMassachusetts, 1780-81, chap. 403, p. 846. 

2 Ibid. 1780-81, chap. 524, p. 925. 

8 Ibid. 1780-81, chap. 514, pp. 919-921. 

< Ibid. 1782-83, chap. 69, pp. 177-179. 



68 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

13 March, 1783, of an act empowering agents and members of 
committees in certain cases to plead the general issue and give the 
acts and resolves of the General Court and any special matter in 
evidence.^ 

At the time of the passage of this last act, it was known in this 
country that George the Thiixl had amiounced at the opening of 
Parliament that a preliminary treaty of peace had been signed 
between Great Britain and the United States. The provisional 
treaty, concluded in November, 1782, had at last become opera- 
tive through the signing, in January, 1783, of the preliminary 
treaty of peace between Great Britain and France and Spain. 
The fifth article in the provisional treaty provided that Congress 
should recommend to the several States the revision of the laws 
against refugees, " so as to render the said laws or acts perfectly 
consistent, not only with justice and equity, but with that spirit 
of conciliation which, on the return of the blessings of peace, 
should universally prevail." The first step taken by the legisla- 
ture of Massachusetts in this "spirit of conciliation" was the 
passage, on the second of July, 1783, of an act "to carry into 
execution an act made in the year one thousand seven hundred 
and sevent3'-eight, entitled 'an act to prevent the return of cer- 
tain persons therein named,' " etc. It was prescribed in the " act 
to prevent the return" that the Board of War should deport 
absentees who should venture to return to the State. That body, 
it was stated, was now discontinued. It was therefore provided 
that cases arising for consideration under that act should be exam- 
ined by two justices of the peace, whose decision was to be cer- 
tified to the Governor. It was made the duty of the Governor to 
cause violators of the law to be deported, and it was provided that 
a second return of the refugees was to be met with the penalty 
prescribed in the original act, which was death. Replevin suits 
could not be maintained in behalf of persons arrested under this 
act. Service of writs in such suits was declared to be void, and 
the officer making the service not only became subject to a fine of 
<£100, but was by the very act of making the service incapacitated 
from making further legal service of papers. This act was to 
remain in force until the recommendation of Congress should be 

1 Laws and Resolves of Massachusetts, 1782-83, chap. 70, p. 179 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 69 

laid before the Court and a final determination tliereon should 
be hadvl- 

On the eighteentli of oNIarch, 1783, committees were authorized 
to lease for one year.^ On the fifth of June, the committee in- 
trusted with the settlement of the accounts of committees on 
absentees' estates was instructed to require final settlements and 
to have balances paid over.^ 

On the fourth of October, a resolve was passed instructing 
committees appointed to make sale of the estates of absentees 
"to surcease the sale of the said estates until the further order 
of the General Court." * 

The definitive treaty of peace, executed at Paris in September, 

1783, was ratified and confirmed by Congress, 14 January, 1784, 
and a broadside was thereupon issued, calling upon all good citi- 
zens and all bodies of magistracy, — legislative, executive and 
judicial, — to observe its terms and carry into effect its definitive 
articles. The fifth and sixth articles of the treaty were similar 
to those bearing the same numbers in the provisional treaty. 
The former of these articles has been already alluded to. The 
latter provided that there should be no more confiscations of the 
property of Loyalists and no more prosecutions by reason of 
the part taken by them in the war. What legislation follows 
was carried throucjh with a full knowledge of the character of 
the recommendations of Congress wliich were referred to as im- 
pending in the last paragraph of the act of July second. 

The first step taken by the Legislature after it was furnished 
with knowledge of these recommendations was to put forth efforts 
to close up the estates of absentees. On the sixteenth of March, 

1784, registers of probate were ordered to return to the Secretary's 
office before June tenth, all accounts rendered by agents of such 
estates. If any agent had failed to render his accounts, registers 
were instructed to bring suit on his bond. Committees having 
absentees' estates in their hands were ordered to make return to 
the Secretary. He in turn was to report to the Attorney-General 
if any committees were delinquent in this respect, and it was made 

^ Laws and Resolves of Massachusetts, 1782-83, p. 499. 

2 Ibid. 1782-83, chap. 175, p. 458. 

3 Ibid. 1782-83, chap. 10, p. 680. 
* Ibid. 1782-83, chap. 14, p. 783. 



^ 



70 THE COLONIAL SOCIETY OF JNIASSACHUSETTS. [Jax. 

the duty of the Attorney-General to prosecute such delinquents. 
It was at the same time provided that there should be no further 
sale of estates of absentees, either as a whole or in part, until the 
further order of the General Court.^ 

The first act passed in which the obligations of the treaty were 
distinctly recognized was the "act for repealing two laws of this 
State, and for asserting the right of this free and sovereign Com- 
monwealth, to expel such aliens as may be dangerous to the 
peace and good order of government." This act became a law 
24 ]March, 1784.2 The preamble asserted that it was the un- 
doubted right of the State to expel such aliens as were possessed 
of dispositions incompatible Avith the safety or sovereignty of the 
State. It is quite possible that in the more liberal spirit of to-day 
we should be inclined to assert our abstract right to expel from 
the country those whose presence threatened the safety of the 
State; but our svnnpathy with the alleged princijjle of the act 
would probably stop at this point, for what was | meant by it was 
more specifically defined in the next sentence, inwhich absentees 
were pronounced to be aliens. Alas for the hoped-for spirit of 
conciliation! All those who had borne arms against the State or 
lent money to Great Britain, and all those who were named in the 
Confiscation Act were designated as aliens and as such ought to 
be excluded from the State. The admission even of others of this 
class was declared to be fuU of danger to the State, but under the 
circumstances it was thought that the present laws for their exclu- 
sion were not calculated to produce peace and tranquilhty. There- 
fore, the act to prevent the return of certain persons therein named, 
etc., and the act to carry that act into execution, — the former 
of the year 1779, the latter of 1783, — were both repealed. This 
of course threw the bars doA\ii and let in everv'body, but to make 
it clear that the spirit of conciUation in which the Legislature 
compUed with the recommendation of Congress did not go far 
enough to permit the more odious of the Loyalists to stay in the 
Commonwealth after they had got there, it was then provided that 
absentees named in the Confiscation Act or who had borne arms 
against the country in the late war, who should return to the State 
with intent to reside therein, should be reported by justices of the 

^ Laws and Resolves of Massachusetts, 1782-83, chap. 132, p. 873. 
2 Ibid. 1782-83, p. 661. 



1903.] THE CONFISCATION LAWS OF MASSACHUSETTS. 71 

peace to the Governor, and if they did not immediately depart 
from the State when thereto ordered by the Governor, they were 
to be committed to gaol. Absentees of other descriptions than 
the above were required to take out licenses from the Governor, 
which licenses should only run from the end of one General 
Court to the end of the next. 

The sixth article of the treaty, which provides that there should 
be no more confiscations, was recognized, and it was provided that 
land held by claimants 19 April, 1775, which had not been confis- 
cated should be restored unless they were pledged for the payment 
of debts due from absentees. From the benefit of this provision, 
however, those named in the Confiscation Act were 'excluded, or 
rather it would be nearer the fact to say, that an attempt was 
made to exclude them. This was done by referring to the Con- 
fiscation Act as "the act of 1778," an error of date which com- 
pelled subsequent legislation by way of correction. 

On the second of July, 1784, it was ordered that confiscated 
lands should be sold by auction for public securities. From this 
oixier, estates which were insolvent were excepted.^ It was evi- 
dent that the titles to the confiscated estates acquired by the 
purchasers at the auction sales were assailed, for on the twenty- 
eighth of October, 1784, a resolve was passed directing the 
Attorney-General to appear and defend the titles of confiscated 
estates .2 

It has been mentioned that corrective legislation was needed to 
cure the hasty and erroneous description of the Confiscation Act 
in the act just above described. This was accomplished 10 Novem- 
ber, 1781, by an act in addition to the former act in which it was 
also provided that where real estate of absentees had been mort- 
gaged by the government, the equity of redemption should be 
regarded as having been confiscated. In the case of property 
leased by the government, the rentals were deemed to have been 
confiscated, but the claimant could demand the property at the 
termination of the lease. It was also provided in the same act, 
that all acts of agents or committees in connection with the real 
estate of absentees, or of real British subjects, where the real 
estates had not been confiscated, if such acts were done according 

1 Laws and Resolves of Massachusetts, 1784-85, chap. 58, p. 234. 

2 Ibid. 1784-85, chap. 25, p. 272. 



72 THE COLONIAL SOCIETY OF MASSACHUSETTS. [Jan. 

to law, should be good and valid. Personal estates of absentees, 
sold or used, were to be deemed confiscated. No action was to 
lie against an agent. If sued, he might plead the general issue 
and give this act in evidence. ^ JThe same day, a letter was 
addressed to the delegates to Congress in which they were in- 
structed to ascertain whether it would consist with the treaty for 
the Legislature to debar British subjects and absentees from recov- 
ering interest during the war ? What did the expression " hona- 
fide debt," used in the treaty, mean? Ought it to include interest 
durino- the war? These questions arose under the fourth article 
of the treaty, which provided that no lawful impediment should 
be imposed to the recovery of debts theretofore contracted. Pend- 
ing an answer which should furnish the congressional interpreta- 
tion of the treaty, actions for interest were suspended until the 
next session of the legislature.^ When that event took place the 
reply of Congress to these questions was still in abeyance. A 
resolve was therefore passed on the seventh of February, 1T85, 
continuing the resolve of November tenth in force until the 
further order of the General Court.^ Whether that order has 
ever been made can be determined by search of the records, if 
any person should deem it worth his wliile. 



1 Laws and Resolves of ]Massachusetts, 1784-85, chap. 31 (1784), p. 105. 

2 Ibid. 1784-85, pp. .300-301. 
8 Ibid. 1784-85, p. 338. 



